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Double jeopardy

RTA v Booth Produce &c [2011] NSWSC 1018. Hidden J.

[15] Counsel for the RTA in this court, Ms Bashir, argued that breaches of the height and width requirements are separate offences and the principle of double jeopardy has no application.

Dealing with the notion of double jeopardy generally, she referred to the following passage from the joint judgment in Pearce v The Queen [1998] HCA 57, 194 CLR 610, at [9] - [13] (pp 614-5):

"[9] The expression 'double jeopardy' is not always used with a single meaning. Sometimes it is used to refer to the pleas in bar of autrefois acquit and autrefois convict; sometimes it is used to encompass what is said to be a wider principle that no one should be "punished again for the same matter".

Further, "double jeopardy" is an expression that is employed in relation to several different stages of the criminal justice process: prosecution, conviction and punishment.

[10] If there is a single rationale for the rule or rules that are described as the rule against double jeopardy, it is that described by Black J in Green v United States:

'The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.'

That underlying idea can be seen behind the pleas in bar of autrefois acquit and autrefois convict as well as behind the other forms or manifestations of the rule against double jeopardy.

It also finds reflection in constitutional guarantees such as the Fifth Amendment to the United States Constitution, which states in part: '[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.'

It may be seen as a value which underpins and affects much of the criminal law. But pervasive as it is, this value is not the only force at work in the development of these parts of the common law. Three further forces can be identified.

[11] First, as the range of crimes and punishments for crime has expanded, it has become apparent that a single series of events can give rise to several different criminal offences to which different penalties attach.

[12] Secondly, it has been recognised that an offender should be punished only for the offence with which he or she was charged, and not for some offence or version of the offence not charged.

[13] Thirdly, and as a corollary to the second matter we have mentioned, prosecuting authorities have sought to frame charges against an accused that will reflect all of that accused's criminal conduct and thus enable the imposition of punishment that will truly reflect the criminality of that conduct." ...

[16] Relevantly for present purposes, at [27] (p 619) their Honours referred to the decision of the Supreme Court of the United States in Blockburger v United States (1932) 284 US 299, in which the court held (at 304):

"... where the same Act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether they are two offenses or only one, is whether each provision requires proof of a fact which the other does not."






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